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THE 

EGAL ASPECT 

OF 

PROHIBITION 



BY 



JOHN C. BENTON 



i 



"Truth, like the sun, submits to be obscured: 
but like the sun, only for a time." — 

Bovee. 



t\ 



Price 50 Cents 




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THE 

LEGAL ASPECT 4£ 

OF 

PROHIBITION 

BY „/ 

JOHN C} ] BENTON 



"Truth, like the sun, submits to be obscured; 
but like the sun, only for a time." — 

Bovee. 



Price 50 Cents 



GEO. A. PIERCE PRINTING CO. 

PUBLISHERS 

LOUISVILLE, KY. 







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Copyrighted by 

JOHN C, BENTON 

1909 



oia. \, g 4 542 4 
AUGJ4. f9Q9 



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THE LEGAL ASPECT OF PROHIBITION. 

JOHN CLEMENS BENTON. 

The prohibition movement grows apace. Indeed, it 
may be said, at last, to have attained the dignity of a 
national question. True, Congress has not as yet under- 
taken to legislate on the subject; and in fact, it has no 
power to do so (in so far as the general public is con- 
cerned) if the provisions of a seemingly obsolescent Con- 
stitution are of any force and effect whatever. True, 
also, that both of the great political parties continue to 
ignore the movement in their platforms. Nevertheless, 
ir many sections of the country it constitutes the most 
important local issue, and in all sections it is a more or 
less engrossing topic of political discussion. 

Already prohibitory liquor laws obtain in many 
States and communities, and, if we can credit current 
statistics, forty per cent, of the people of the United 
States chafe under their iniquitous and exasperating re- 
strictions. And, notwithstanding legal fictions to the con- 
trary, these laws do, in fact, deprive persons of property 
without due process of law; they do, in fact, impair the 
obligations of contracts, and they do, in fact, deprive the 
people of vested rights contrary to the letter and spirit 
of the Constitution. Moreover, they impede the growth 
and commerce of individual communities, thereby im- 
pairing the general prosperity of the Nation; they se- 
riously cripple the national revenue, and they tend to 
revolutionize the accepted theory of constitutional gov- 
ernment. 

For these reasons the question may be considered 
national, and, perhaps, the most important national ques- 
tion at present confronting the American people; the 
one of all others now pending most directly affecting the 
rights and- liberties of the people, and one upon the 



' 



proper solution of which largely depends the integrity of 
the Constitution and the good repute of the Republic. 

Our public men, who are usually looked upon as lead- 
ers in political matters, that is to say, our statesmen and 
politicians, doubtless have opinions on this subject, as 
they are presumed to have on all matters of public im- 
port, but for obvious reasons they are, with few excep- 
tions, conspicuously averse to making them known. 

vThere is another class of public men, however, who, 
from their- education, their vocation and their general 
experience and habit of thought, may well be supposed 
to be the least qualified of all men to expound the question 
fairly and correctly, namely, the preachers of certain re- 
ligious sects, which make a fetichism of total abstinence. 
They, as a class, are least likely to understand the ques- 
tion, since an understanding of it implies not only a 
knowledge of the fundamental principles of the common 
law, a knowledge of the just relation that should be 
maintained between necessary legal restrictions and the 
fullest possible measure of individual liberty, and 
a knowledge of the true function of the civil law in re- 
spect to religion and morality ; but it also requires a com- 
prehensive, first-hand knowledge of human nature, and a 
due appreciation of the practical objections and difficul- 
ties that hamper the enforcement of a law which a large 
part of the people believe to be unjust and will not obey. 
And these gentlemen are not so reticent as our politicians. 
On the contrary, they freely proclaim their opinions, if 
not from the house-tops, at least from pulpits and ros- 
trums, in the magazines and daily press, at the fireside, 
at the table, on the street corners, traveling and resting, 
Sundays and week days, wherever and whenever, in 
short, an opportunity offers ; and if it may be said that 
they lack inclination or ability to treat the subject with 
perfect fairness to those most concerned, it cannot be 
denied that they exhibit the most untiring zeal and 
persistency. As their opinions and advice, however, 



spring from prejudice and misconception, the conse- 
quence is that in the United States today there exists a 
curious befuddlement of public opinion concerning the 
use of alcoholic liquors. 

What is the prevailing opinion on the subject? Can 
anyone say? Is it that such liquors should not be used at 
all, as the out-and-out Prohibitionists maintain? Or that 
they should be used strictly in private and denounced in 
public, according to the way of the hypocrites who affil- 
iate with the Prohibitionists? Or, finally,* that they should 
be used like other fruits of the earth, which an all-wise 
and bountiful Providence has supplied for man's pleas- 
ure and benefit — openly, rationally and gratefully, as 
the advocates of personal liberty contend? 

At present the prevailing sentiment certainly is not 
that of the Prohibitionists who, indeed, in point of num- 
bers, are a negligible factor in national politics. As 
f omenters of trouble and disseminators of pernicious doc- 
trines, however, and especially as indefatigable vote- 
getters for their cause, it is otherwise, and they consti- 
tute a standing menace to constitutional liberty. If the 
moulding and energizing of public opinion on the sub- 
ject is to be permitted to devolve upon them by reason 
of the apathy of those who have broader and truer con- 
ceptions of the rights and responsibilities of American 
citizenship, it requires no gift of prophecy to foretell the 
result. 

The antics of the Carrie Nation reformers, who would 
Christianize the world with an axe, may be regarded with 
amused toleration by easy-going Americans when the 
performances occur in remote communities. "It is noth- 
ing," they say; "the good sense of the American voter 
will make all right in the end." But when the crusade is 
directed against their own communities they will be un- 
pleasantly surprised to find that the judgment of the 
American voter has already been warped and under- 
mined, and that his good sense is subject to occasional 



eclipse. It is a grave mistake, therefore, to defer the 
"campaign of education" until a contest has been for- 
mally inaugurated in a specific locality and then to con- 
fine it to that locality; and it is a graver mistake to as- 
sume, as many worthy citizens do assume, that the con- 
test only concerns the "liquor interests." 
4 It concerns every resident of the United States, and 
every citizen of the United States who truly appreciates 
the blessings of liberty, and especially the liberty to regu- 
late his purely personal affairs and his individual con- 
duct according to his own will and conscience, should 
aid to the extent of his ability and opportunity in the 
creation of a sane, sensible and dominating public senti- 
ment against this vexatious, degrading and wholly un- 
called for restriction. The proposition is so repugnant 
to American traditions, American ideas and ideals, 
American laws, customs and theories of government that 
one finds it difficult to believe that a majority of voters 
in any American community would support it — would 
stultify themselves and defame their countrymen by 
maintaining that prohibitory liquor laws are necessary 
for the protection of the American people. Are the Amer- 
ican people destitute of self-respect and commonsense, 
and utterly incapable of self-government? Are their 
habits and appetites so swinish and besotted that such 
laws are necessary or desirable? And are they so de- 
ficient in courage and intelligence that courts may safely 
usurp the power to alter the Constitution and deprive 
them of inalienable rights by,a process of forced con- 
struction and interpretation? /Shall Government under- 
take to prescribe what free/nd independent citizens of 
the Eepublic shall or shall /not eat and drink? Is that 
American liberty? 

It is true that in local campaigns the "reformers" 
usually disguise their real purpose by ostensibly warring 
against saloons only. But this should deceive no one. 
The various organizations enlisted in "the fight against 



alcohol" adopt such methods of achieving the desired re- 
sult as to their respective leaders may appear most ex- 
pedient, bnt with all the ultimate object is the same, 
namely, the absolute prevention of the manufacture, sale 
and use of all kinds of drinkable spirituous, vinous and 
malt liquors. This is freely admitted by many of their 
speakers and writers, it is exemplified by their tactics, 
and it is expressly declared in the platform of the Pro- 
hibition party. The attacks on licensed saloons are 
merely preliminary skirmishes to be followed, when suc- 
cessful, by a general attack on all makers, sellers and 
users of the commodity in question; a commodity which 
many of our citizens consider essential to their comfort 
and health, but which our Prohibition friends look upon 
with disfavor. 

It is their opinion that the use of alcoholic liquors is 
harmful and "wicked," and they are undoubtedly en- 
titled to entertain that opinion and to conform their con- 
duct in accordance with it. Furthermore, they possess 
the right to undertake the conversion of others to their 
views and practices by argument and persuasion, but 
they have not the right to compel them by law. 

It is the opinion of their fellow-citizens, on the other 
hand, that the moderate use of alcoholic liquors is proper 
and beneficial, and to be encouraged on social, hygienic 
and economic grounds, and they are equally entitled to 
their oxjinion, and possess the right to regulate their con- 
duct accordingly. 

.i The right of individual opinion and action, with in- 
dividual responsibility, is the vital element of liberty. 
Without it liberty cannot exist, and a country where the 
law deprives the people of this essential and distinctive 
right of liberty is not a free country. Such laws, and all 
laws which unnecessarily abridge the natural rights of 
man, are evidence of despotic government and merely re- 
flect the arbitrary will of the ruler; and of all forms of 
government despotism is the most hateful to liberty- 



loving men. And yet American citizens, presumably of 
sufficient intelligence to understand and appreciate the 
difference between freedom and tyranny, permit them- 
selves to be cajoled into the support of a movement which 
would convert a constitutional government into a despot- 
ism of the most odious form, a despotism animated and 
controlled by blind, senseless and unreasoning f anatisicm. 
How are we to explain it? 

The explanation generally advanced and apparently 
accepted as satisfactory by many is usually condensed 
into one word— fanaticism. But this summary method 
of accounting for the surprising fact of a free people sur- 
rendering important and cherished rights at the dictation 
of insistent bigotry, and that, too, without benefit, but 
rather with detriment to the State, is not convincing, be- 
cause we know that the majority of American voters are 
not fanatics. 

Only a superficial observer of American character 
and American affairs could be misled into ascribing Pro- 
hibition victories in particular localities to the apparent 
fact that in those localities fanatics outnumber the sane 
citizens. But, nevertheless, it is true that fanaticism is 
chiefly, if not wholly, responsible for the debauched pub- 
lic opinion which makes such victories possible, and that 
despite the fact that fanatics constitute an insignificant 
minority of the legal voters. It is fanaticism that in- 
itiates the warfare against liquor, recruits, inspires and 
marshals the combatants, plans and directs the cam- 
paigns, and, in the event of victory, assumes the credit 
and prestige of success — such credit and prestige, that is 
to say, as may rightfully attach to the responsibility for 
unjust and vexatious laws. Indeed, the idea of institut- 
ing and prosecuting such a war, and enacting such laws, 
laws which ignore the elementary principles of justice 
and wrongfully deprive free citizens of important prop- 
erty and personal rights, would never occur to a sane 
mind. And yet such laws are enacted (and systematically 



evaded) in many States of the Union, to the shame and 
reproach of our boasted civilization. 

ibid, more surprising still, such laws are upheld by 
our courts and declared to be constitutional, although 
they are laws which the Constitution expressly declares 
the States shall not pass. 

The enactment and enforcement, or attempted en- 
forcement, of prohibitory liquor laws in various States of 
the Union is an achievement which reflects no credit upon 
the intelligence and patriotism of the American people. 

It is a stigma upon the Republic, a violation of the 
basic principles of constitutional government, a ruthless 
trampling upon the sacred rights of the minority by a 
factional majority. And whether these laws are to be 
attributed to the persistent preaching of false doctrines 
by fanatical religionists, or to the misdirected efforts of 
well-meaning enthusiasts to reform the morals of the 
world by legislative enactment, they are equally unjust 
and in conflict with the provisions of the Federal Consti- 
tution. 

The right to eat and drink as one will is necessarily 
included in the right of liberty, the same as the right to 
come and go, or the right to labor, or to buy and sell. It 
is something more than a mere privilege which the Legis- 
lature may grant or take away at pleasure. It is not a 
right conferred by the State ; it is a natural right, a right 
inherent in free men and absolutely inalienable. 

And while it is undoubtedly true that in organized 
society the natural rights of individuals must be subordi- 
nated to the superior rights of society, and they are there- 
fore rightfully subject to modification and control by the 
general government for the common good, it is also true 
that governmental interference with, or abridgement of, 
individual rights, should be, and in constitutional gov- 
ernment is, limited by the covenant, express or implied, 
between the government and the people, which constitutes 
the fundamental law of the land. 



WHAT THE CONSTITUTION IS. 

In our own country the law which authorizes and 
limits the power of the State to abridge or prohibit the 
enjoyment of natural rights is embodied in the Federal 
Constitution. And the Constitution is not a charter or 
grant from the Government conferring specified rights, 
privileges and immunities upon the people, as some writ- 
ers and speakers appear to believe. It is an institutional, 
creative act of the people establishing the government. 

It is the people who grant, and not the government, 
and it is not the people of one or more States, but the 
people of the United States. 

" We, the people of these United States,. . . .do ordain 
and establish this Constitution." 

The people establish the government and define its 
powers, and then they t expressly declare that: (1) ''The 
enumeration in the Constitution of certain rights shall 
not be construed to deny or disparage others retained by 
the people;" and (2) "The powers not granted to the 
United States by the Constitution, nor prohibited by it 
to the States, are reserved to the States respectively or 
to the people." 

That is to say, for instance, that unless the right to 
use and traffic in alcoholic liquors has been surrendered 
by the people, they still retain it (assuming that they ever 
possessed it), and neither the United States nor the indi- 
vidual States have power "to deny or disparage" it. It 
is not a question of the importance of the right, nor of the 
wisdom or expediency of permitting the people to exer- 
cise it, though it might puzzle one to name a reserved 
right of greater importance than the right of a free man 
to determine for himself what he shall or shall not eat or 
drink; nor is it a question of what the Legislatures or 
courts have declared, for neither Legislatures nor courts 
have power either to confer the right or take it away. 
That power rests solely with the sovereign people. 

It is merely a question as to the existence of the right. 



If the right exists, no State has the power, under the Con- 
stitution, "to deny or disparage" it. And if it ever ex- 
isted it exists today, for the people have never sur- 
rendered it nor empowered either Federal or State gov- 
ernment to divest them of it. 

The right, if it be a right, is one of the "retained" 
rights, since it is not an enumerated right, and being a 
retained right it is protected from governmental repu- 
diation or abridgment by the terms of the Constitution. 
To differentiate it from other retained or reserved rights 
and hold that it may be abridged or absolutely abolished 
by the Legislature, as some of our courts have done, be- 
cause in their opinion public policy, or the Christian re- 
ligion, or the welfare of certain individuals, would seem 
to require it, or to so hold for any other reason, is not in- 
terpreting the Constitution, but altering it. If the courts 
may so hold in respect to the right to use and traffic in al- 
coholic liquors, there is no logical reason why they may 
not so hold in respect to the right to use and traffic in 
tea or coffee, or in respect to any right, privilege or im- 
munity which the people, when they established the Con- 
stitution, plainly intended to safeguard from the hazards 
of legislative interference or judicial construction. If 
the courts may by interpretation and construction em- 
power legislators to do that which the Constitution in 
plain terms expressly forbids them to do they may by the 
same process construe away the Constitution altogether. 

Both the letter and the spirit of the Constitution indi- 
cate clearly that it was the intention of the people to re- 
tain all the rights, privileges and immunities of perfect 
individual liberty except in so far as it might be necessary 
to abridge them for the general good; and power to 
abridge them only to that extent and for that purpose, 
was accordingly granted to the Federal government or 
to the States. The rights, privileges and immunities thus 
brought within the "sphere of legislative control" and 
subject to abridgment are expressly enumerated in the 



Constitution, or plainly implied, and all other rights are 
"retained by the people," and all other powers are "re- 
served to the States respectively or to the people." Such 
being the case one would suppose that there could be no 
doubt about the unconstitutionality of an act which de- 
prives the people of any "retained" right, an act which 
the legislature had no express, or necessarily implied, 
power to pass ; or that, if a doubt should exist, the rule of 
construction would be to resolve it in favor of the people 
rather than against them— in support of their ancient 
rights and customs, rather than in defiance of them. 

By the Constitution, these "retained" or "reserved" 
rights of the people are made secure from impairment by 
legislatures or courts, and nothing short of an amend- 
ment to the Constitution can empower a State to nullify 
them. The assumption that a majority of its citizens can 
so empower a State is clearly untenable, since it implies 
that a State can change the Constitution. The argument 
is, that the people are supreme and may, therefore, in the 
exercise of their sovereign power, prohibit the sale of 
liquor or any other commodity. Very true, the people 
are supreme, and they may authorize the prohibition of 
traffic in any commodity. But who constitute "the peo- 
ple®" Not the people of Maine, nor the people of Kan- 
sas, nor the people of Oklahoma, nor the people of any 
particular State, but "the people of these United States." 
Whence people of the United States by amendment to 
the Constitution choose to grant authority to the States, 
or to the Federal government, to enact prohibitory liquor 
laws then such laws will be Constitutional, but not until 
then. In point of fact, however, States do now enact such 
laws and courts of last resort uphold them, and whatever 
our individual opinions may be as to the soundness of 
such decisions, we are bound to accept them as the law. 
If they are right, they will be respected and followed be- 
cause of that fact. If they are wrong, they will be fol- 
lowed just the same — for a time at least, by virtue of that 



10 



maximized device for perpetuating erroneous interpreta- 
tions of the law which lawyers call stare decisis. So, 
whether the decisions are right or wrong the result is the 
same to the people so far as the invasion of their rights 
is concerned. 

Therefore, if the people would retain their rights and 
escape the affliction of obnoxious and oppressive laws, 
they must rely on the ballot and an enlightened public 
opinion rather than trust in the delusive declarations of 
the Constitution or the assumed infallibility of the courts. 
But, it is contended, the so-called right to drink or 
traffic in alcoholic liquors is not a right at all. It is a 
mere privilege or license graciously permitted by the sov- 
ereign government to the subject people ,and revocable 
at will; therefore, it is argued, a State may prohibit the 
traffic. Tlds conclusion follows, of course, if the premises 
are granted, but the premises are not granted. They are 
not true. Our government is one of limited and defined 
powers, and the people are sovereign. Every American 
has been taught this and believes it, except, perhaps, 
those whose sense of right may have been corrupted by 
the virus of Prohibition. 

THE BIGHT TO USE LIQUOR UNDER THE COMMON LAW. 

The right has always been respected by government 
and protected by the common law. It is not possible, of 
course, to cite any special grant of the right for the suf 
ficient reason that it never was granted. It is, as I say, 
a natural right and has always existed, like the right to 
provide and eat food. Nor can early decisions affirming 
the right be cited because it never was questioned prior 
to the advent of the Prohibitionist in recent times. But 
the continuous existence of the right is an established 
historical fact of which the courts are bound to take ju- 
dicial notice. 

In Magna Charta (A. D., 1215) for instance, we find 
these words: "There shall be one measure of wine 

11 



throughout our whole kingdom, and one measure of ale, 
that is the London quart, and one width of dyed cloth 
and of russets and of halbergets, that is two ells within 
the selvages ; of weights, moreover, it shall be as of meas- 
ures. ' ' 

Here we see that the right to traffic in alcoholic 
liquors, like the right to traffic in cloth and grain, was 
deemed of sufficient importance to be specially mentioned 
in the Great Charter, and protected by the adoption; of a 
legal standard of measure. , > , : 

The right is referred to again in the New Ordinances 
(A. D., 1311) which established the "new" and -^en- 
hanced" customs on wools, cloths, wiues and other 
things. : • . : • i .... 

IN COLONIAL DAYS. ..: ».- ; '.. 

In colonial days 'the traffic in liquor was also 
regarded as a right; and not as a special privilege, bestow- 
able and revocable at ,\]ie pleasure of the government. 

In the "First Code, of : Laws" of Connecticut (May, 
1650) we read: "Fqr^smucji as there is a necessary use 
of houses of common entertainment in every Common- 
wealth, and of such as retail wine, beer and victuals, yet 
because there are so many abuses. of that lawful liberty, 
both by persons entertaining and persons entertained, 
there is also need of strict laws and rules to regulate such 
an employment : 

"It is therefore ordered," etc. 

Here Ave have not only a recognition of the fact that 
there is a necessary use "of such, as .retail wine, beer and 
victuals;" and that the conducting of such business is a 
"lawful liberty;" but we have also a sound exposition of 
the true function of government in respect to the liquor 
traffic, namely, to restrain or punish, not the use, but only 
the abuse, of that "lawful liberty." 

Our puritanical ancestors seem to have had a pro- 
founder knowledge of constitutional government, and a 

12 



greater respect for the rights of individual citizens than 
some of their descendants. 

Witness the declarations in the preamble and first 
paragraph : 

' ' Forasmuch as the free fruition of such liberties, im- 
munities and privileges, as humanity, civility and Chris- 
tianity call for, as due to every man in his place and pro- 
portion, without impeachment and infringement, hath 
ever been and ever will be the tranquility and stability of 
churches and Commonwealths, and the denial or deprival 
thereof the disturbance, if not ruin, of both: 

"It is therefore ordered by the Court and the author- 
ity thereof, that no man's life shall be taken away, n© 
man's honor or good name shall be stained, no man's 
person' shall be arrested, restrained, banished, dismem- 
bered, nor anyway punished, no man shall be deprived of 
his r wife or children, no man's goods or estate shall be 
taken away fr-Oin him, or in any ways endangered, under 
color of law, or countenance of authority, unless it be by 
the Virtue or equity of some express law of the country 
warranting the'sadne, established by a General Court and 
sufficiently published 1 ,' or, in case of the defect of a law 
in any particular case by the word of God." 

(The preamble and the paragraph which follows it are 
copied from 1 the Massachusetts Body of Liberties.) 

ii I commend the careful consideration of the princi- 
ples set forth' in this brief extract to Prohibitionists and 
others who believe in restrictive and coercive legislation, 
and in stretching the Constitution by construction and 
interpretation be'yOnd its normal limits. If they grasp its 
full significance they will understand: (1) that the prime 
object of government is the stability and tranquility of 
the Commonwealth: (2) that this object is more surely 
attained by securing to all citizens 'the free fruition' of 
their customary and lawful liberties, immunities and 
privileges without impeachment or infringement, since 
the ' denial or deprival thereof invites 'disturbance 

13 



and ruin;" and (3) that simple justice demands that 'no 
man's goods or estate shall be taken away from him, nor 
anyways endangered, under color of law or countenance 
of authority, unless it be by the virtue or equity of some 
express law of the country warranting the same.' " 

Now, prohibitory liquor laws violate these elementary 
principles of sound legislation, so essential to good gov- 
ernment, and menace the stability and tranquility of the 
Commonwealth. They deny to citizens their customary 
and lawful rights, and they take from them their goods 
and estate, without compensation, under mere color of 
law, that is to say, by virtue of an act passed by the Leg- 
islature of a State, which the supreme law of the land 
expressly declares no State shall pass. 

I have cited the ancient laws of Connecticut because 
of the popular (though erroneous) belief that the laws 
of that colony were distinguished by their special sever- 
ity and their disregard of individual rights, as compared 
with the laws of other colonies and other countries of that 
day; and, therefore, if precedent for prohibitory liquor 
laws existed anywhere that it probably would be found 
in the records of that particular colony. 

But such is not the case. We find that the conscien- 
tious and God-fearing men who established the Con- 
stitution and the First Code of Laws of that colony re- 
spected ''the lawful liberty" and individual responsibil- 
ity of their fellow citizens as free men and co-equals, and 
permitted every man to decide for himself, according to 
bis own reason and conscience, whether or not he should 
abstain altogether from the use of wine and other intoxi- 
cants. Fully recognizing the evils of "excessive tip- 
pling" and avowedly striving to establish "an orderly 
and decent government according to G-od's ordinances, 
and to maintain and preserve the liberty and purity of the 
Gospel of our Lord Jesus," they could see no occasion, 
reason or pretext for prohibiting the use of liquor, but 

14 






wisely directed tiieir efforts, as law-makers, to the cor- 
rection of those who wrongfully abused their lawful lib- 
erty to use it. And they sanctioned the use of liquor, 
not for policy's sake, for the majority of the people were 

crate, and used liquor sparingly, if at all, but they 
did so because in their judgment it was right. It was 
not only in conformity with the law and the immemorial 
custom of Christian nations, but it was approved by the 
revealed word of God, and by the precept and example 

eir Lord Jesus Christ. They looked upon it as a 
right which they had no authority to question and no 
power to abolish. And so it was regarded by all the col- 
onies, and by all the people, Puritan and Cavalier alike — 
as a right, a natural, inherent, inalienable right. 

THE RIGHT UKUEB THE CONSTITUTION. 

When the people came to establish the Constitution 
they knew what rights they possessed and how they 
would be, or might be, affected by the powers granted to 
the Government. And seeing that they granted no power 
to either Federal or State government to deprive them 
of right in question, and expressly declared that all rights 
and powers not enumerated or granted were retained by 
or reserved to the people, the logical conclusion follows 
that the right was in fact reserved to the people. If that 
is the case, the people still retain the right and cannot 
lawfully be deprived of it, except by amendment of the 
Constitution. 

The process of reasoning by which the right to drink 
what one will is differentiated from any other retained 
right, in respect to its inviolability, has never been dis- 
closed and I confess nry inability to divine it. Those who 
maintain that they do differ in that respect, content them- 
selves with an ex cathedra statement that such is the case 
and let it go at that. Their contention is that, while the 
right to drink wine and spirituous liquor is undoubtedly 

15 



a "retained" right, it is a right of such peculiar nature 
that neither Congress, nor the Legislatures, nor the 
Courts are obliged to respect it. Truly, a queer sort of 
right. If this right may be legislated or construed away 
one is led to suspect that all "retained" rights are sub- 
ject to the same contingency. 

While there may be a difference between the various 
"retained" rights, in respect to their relative importance, 
as, for instance, between the right to trade and labor, and 
the right to drink ale or wine, there is no difference be- 
tween them in respect to their inviolability, and the man- 
ner in which they are assured to the people. They are 
simply rights which the people possessed under the com- 
mon law and which, when they established the Consti- 
tution, they expressed therein their purpose to retain. 

Upon the score of inviolability they stand upon pre- 
cisely the same footing, and if one may be denied or dis- 
paraged so may the others, and the constitutional pro- 
vision to protect rights not enumerated, and to prohibit 
powers not granted, is meaningless. 

But the Constitution further provides that: "No State 
shall make or enforce any law which shall abridge the 
priviliges or immunities of citizens of the United States." 

What priviliges and immunities are here referred to ? 
Why, evidently all privileges and immunities which the 
citizens had theretofore enjoyed and which were not 
abridged by the Constitution, and among them, as we 
have seen, were those of manufacturing, buying, selling 
and using spirituous, vinous and malt liquors. There 
is nothing in the Constitution which indicates that the 
people intended to surrender these privileges, or to 
authorize either the Federal or State government to 
abridge them. It is therefore manifest, if we take the 
Constitution to mean what it says, that no State may 
"make or enforce any law which shall abridge" these 
privileges. But, it is argued, we are not to take the Con- 
stitution to mean what it says, but to mean what the 

16 



Court, in its superior wisdom, may determine it ought to 
have said. 

When the Constitution positively prohibits a State 
from exercising certain powers or making and enforcing 
certain laws, we are to assume that the prohibition is 
subject always to a convenient proviso, unexpressed, but 
necessarily implied and amply adequate to the exigencies 
of the case. 

If, for instance, a State is forbidden to make or en- 
force a law which would abridge the privileges or im- 
munities of the people, it would seem that the legal pre- 
sumption is, not that all immunities and privileges are 
thus protected from abridgment by the States, as the 
actual words imply, but only some of them, the various 
States to determine each for itself which may be abridged, 
as if the section with the implied proviso, duly expressed, 
read as follows : 

"No State shall make or enforce any laws which shall 
abridge the privileges or immunities of tEe citizens of the 
United States, except ivhen a State may deem it expedient 
to make and enforce such laws as a police regulation, or 
to regulate commerce, or to promote the general tvelfare, 
er in the interest of public policy, or for some other 
reason which to the Legislature may appea-r good and 
sufficient." 

True, this is rather straining the accepted rule of con- 
struction, but — well, it is necessary. Otherwise, in order 
to validate such laws, recourse must be had to the pre- 
scribed remedy of constitutional amendment, which, as 
everyone knows, is a cumbersome process, tedious, trou- 
blesome and uncertain. The method in vogue of avoiding 
or removing constitutional obstacles by supplying omitted 
but necessary qualifying clauses as occasion may re- 
quire, on the near principle that a Court may assume 
that to have been done or intended which ought to have 
been doue, is more expeditious, quite as effective, and 
therefore to be preferred. 

IT 



And, so long as the people do not seriously protest 
against the usurpation of their special prerogative by 
the courts, it will doubtless continue to be the approved 
method of altering and amending the Constitution, and 
adapting it to the requirements of changed conditions or 
new theories of government. 

The same clause of the Constitution further provides : 
"Nor shall any State deprive any person of life, liberty 
or property without due process of law." 

"Due process of law" has been defined by the courts 
to mean "a course of legal proceedings according to 
those rules and principles which have been established 
by our jurisprudence for the protection and enforcement 
of private rights;" or, in other words, a trial before a 
court of competent jurisdiction according to law. In 
other cases, however, it has been held that the words "do 
not necessarily imply a regular proceeding in a court of 
justice." (Davidson vs. New Orleans, 96 U. S., 97.) 

But whether they imply a regular trial or not, they do 
imply a hearing of some sort according to the pre- 
scribed rules of law, with a view of administering justice, 
call it what you will. "By 'due process' is meant a pro- 
ceeding following the forms of law, appropriate to the 
case, and just to the parties affected. It must be pursued 
in the ordinary mode prescribed by the law; it must be 
adapted to the end to be attained; and whenever it is 
necessary for the protection of the parties it must give 
them an opportunity to be heard respecting the justice 
of judgment sought. '' ' (T.urpin vs. Leman, 187 IT. S., 51.) 

"Due process," then, as used in this section, cannot 
be construed to embrace a popular election nor an act of 
the Legislature. Therefore, according to the Constitu- 
tion, no person can be deprived of his liberty or property 
by either of these methods. And yet it is done, and our 
courts justify such violation of the Constitution on the 
ground that it is a legitimate exercise of the police power 
of the States. Consider what this means. 



It means, in the first place, in the opinion of the 
courts, that the police power of the States is superior to 
the Constitution, since by virtue of that power a State 
may do that which the Constitution distinctly prohibits 
it from doing. Is this law I Let it be admitted that 
among the reserved powers of the States is that of duly 
safeguarding the person, the health and the property of 
the citizens, and maintaining the public peace and order 
(and this is the true function and the normal limit of the 
so-called police power) ; and let it be admitted further 
that in determining the constitutionality of laws, alleged 
to be an exercise of this power, all doubts should be re- 
solved in favor of the laws, still no warrant exists for up- 
holding a particular law, -which the Constitution ex- 
pressly declares no State shall pass, for in such a case 
there are no doubts to resolve. 

When the Constitution says that no State shall de- 
prive any person of life, liberty or property without due 
process of law, how can doubt exist as to the unconstitu- 
tionality of an act which deprives persons of liberty and 
property by an election, or a city ordinance, or an act of 
the Legislature, or in any other way than the one way 
prescribed — by "due process of law," which, as we have 
seen, implies, if not a regular trial, at least some kind of 
legal proceeding with the essential features of a trial. 

Even in the absence of an express inhibition in the 
Constitution, a law which deprives persons of life, liberty 
or property without trial should be declared void, since 
it is contrary to the whole spirit and tenor of that instru- 
ment, and "defeats the controlling purpose of the people 
in founding the government, namely, to establish justice 
and to secure to themselves and their posterity the bless- 
ings of liberty. 

But to uphold a law of the kind in defiance of express 
constitutional inhibitions, for the sole reason that the law 
per se may be considered to come within the purview of 
the implied police power of a State, is to bold, in effect, 

19 



that a State is superior to the Constitution and may dis- 
regard the checks and limitations which the people of the 
United States, in establishing the Constitution, deliber- 
ately imposed upon the specified and the reserved 
powers of the several States. The doctrine is so antag- 
onistic to the fundamental principles of the Constitution, 
so contrary to traditional and ingrained belief in its su- 
premacy and the absolute authority of its mandates, that 
one is amazed to find it approved by any American court 
of general jurisdiction. 

That a State, by virtue of a reserved power, may do 
that which the Constitution expressly declares it shall 
not do! It is a most extraordinary proposition. It is 
subversive of the special object of a written Constitution 
— -to limit and define the powers of government clearly 
and exactly and thereby prevent or lessen the liability 
of error or usurpation. It is fraught with potentialities 
of disaster to the Constitution. If, by judicial construc- 
tion, a peremptory mandate of the Constitution may be 
obliterated to permit the exercise of some implied, extra- 
constitutional power, the Constitution is doomed, for im- 
plied powers and occasion for their exercise will then 
arise as political exigencies may demand. But it may 
be argued, it does not obliterate, or ignore, or contra- 
vene the Constitution at all. The "liberty" of those who 
use or traffic in alcoholic liquors is not the kind of liberty 
the Constitution designs to protect. So be it. The courts 
have so decided, and until some future Marshal shall 
appear and clarify our muddled fountains of justice, we 
must, perforce, accept as the law of the land the strange 
dictum that the liberty of those who drink wine differs so 
essentially from the liberty of those who drink Peruna, 
that a Legislature, or a city council, or a board of super- 
visors, or any old board may suppress it at will. 

But the property? Is not alcoholic liquor property? 
And breweries? And distilleries? And all sorts of lna- 

30 
J 



ehinery.and apparatus adapted exclusively to the manu- 
facture of liquors? And the various materials and sup- 
plies? Are not all these things property? 

The Supreme Court of the United States has said that 
"the word 'property,' in the 14th amendment, embraces 
all valuable interests which a man may possess outside of 
himself — outside of his life and liberty. ' ' 

How, then, may a State deprive persons of the prop- 
erty mentioned without a trial, and not violate the Con- 
stitution? It will hardly be contended that the trial 
which may occur after the enactment of a prohibitory 
law, a trial to test its validity, or to inflict penalties for 
its infraction, is the trial or due process of law to which 
the Constitution refers. The damage has then been done, 
the persons already deprived of their lawful liberty and 
property by the legislative act, which certainly is not the 
"due process of law" contemplated by the Constitution. 
But the liberty and property of such persons are appar- 
ently of no moment. It would seem that those who use or 
deal in alcoholic liquors are excluded from that equal 
protection of the laws which the Constitution assures to 
all persons, and that their rights may be ignored, their 
liberties denied, and their property confiscated with im- 
punity. 

"Nor shall any State deprive any person of life, lib- 
erty or property without due process of law." If these 
words mean anything at all, they mean that the Consti- 
tution protects from spoliation the property of a saloon- 
keeper the same as it protects the property of a preacher ; 
the product of a distillery or brewery the same as the 
product of a mill or factory. The State shall not deprive 
any person of ami property without a legal trial is what 
the Constitution says. "Pooh!" reply Prohibitionists, 
with the calm assurance of those who have something up 
their sleeve, "what's the Constitution? Under the police 
power, a State may do anything, and that settles it." So 
the courts say, also. And yet it is not — well, if it is the 



law, it is not like the laws of the Medes and Persians, and 
we may still hope that some day it will be changed to 
conform with the principles of right and justice, and the 
plain requirements of the Constitution. 

Consider the proposition. Citizens engage in the busir 
ness of manufacturing and selling a commodity in gen- 
eral use, a business known to all men, since it has existed 
always and everywhere, and moreover a business ex- 
pressly sanctioned by our laws, both State and Federal. 
By the expenditure of labor and capital, and relying on 
the good faith of the government, these citizens in time 
build up a great industry representing in the aggregate 
billions of dollars, giving employment to millions of per- 
sons, and like all great industries, increasing the business 
of other industries and persons. Their business extends 
from State to State throughout the Union, to foreign 
countries, to all parts of the world. Now comes a State, 
and for a good reason or a bad reason, or for no reason 
at all, passes an act prohibiting the business within its 
boundaries and closing the brewery, or distillery, or 
winery, as the case may be. Is this due process of law"? 
We know it is not. And is not the closing of breweries, 
distilleries and wineries, and preventing the sale of their 
products depriving persons of their property? Assur- 
edly. Then the act is clearly invalid. 

Our State Legislatures are not supreme, like the Eng- 
lish Parliament. They are subject to a written Constitu- 
tion, as everyone knows. 

''This Constitution, and the laws of the United States 
which shall be made in pursuance thereof, and all treaties 
made, or which shall be made under the authority of the 
United States, shall be the supreme law of the land, and 
the judges in every State shall be bound thereby, any- 
thing in the Constitution or laws of any State to the con- 
trary, notwithstanding." It is the Constitution, then, 
and the laws made "in pursuance thereof," and not the 
police power, and laws made by virtue thereof, that con- 

22 



slitute "the supreme law of the land by which all judges 
.shall be bound, anything in the Constitution or laivs of 
any State to the contrary notwithstanding." 

If, therefore, the Federal Constitution had expressly 
granted power to the States to make necessary police 
regulations, which is all that can be claimed under the 
implied power, and the Constitution of a State expressly 
authorized the enactment of a statute to deprive persons 
of life, liberty or property without a trial, or "due pro- 
cess of law," it would be in conflict with the provisions 
of the Federal Constitution and of no force and effect, 
and a statute in pursuance thereof would be absolutely 
void. It is not enough that an act be a reasonable police 
regulation. It must also be an act not prohibited by the 
Constitution. So, even if it be admitted that a prohibitory 
liquor law is per se a proper police regulation, yet if it is 
one 'prohibited by the Constitution, as depriving persons 
of liberty and property without due process of law, it is 
invalid. 

The Constitution further provides that : 

"No State shall .... pass any bill of attainder, ex post 
facto law, or law impairing the obligation of contracts." 
(Sec. X., clause 1.) 

We are not concerned with bills of attainder ; they are 
not pertinent to the matter under discussion. We are 
concerned with the inhibition chiefly in so far as it relates 
to laws impairing the obligation of contracts; though 
laws prohibiting and penalizing the carrying on of any 
established business, which the law permitted to be car- 
ried on at the time it was established, partake of the 
nature of ex post facto laws, since they impose a punish- 
ment for an act which was not punishable, or declared 
to be an offence, by any previous law. The right to 
carry on a business is implied in the right to establish it 
and constitutes, in fact, its essential element of value, 
the special inducement which led to its establishment, 
it is, indeed, an extraordinary sense of justice that would 



deny the right to carry on a lawfully established busi- 
ness, whether the business be that of milling- and selling 
flour, or brewing and selling beer. Consider the glaring 
injustice of the proposition. A brewer, or a brewing 
company, for the outlay requires large capital, purchases 
land, erects suitable buildings, instals the necessary ma- 
chinery and apparatus, provides the requisite materials 
and supplies, engages employes and finally, after the ex- 
penditure of time, labor and money, the plant is equipped 
and ready for business. Then comes more expense in 
advertising and introducing the product to the trade. At 
first, as with all business concerns, it is all outgo and no 
income, and probably the promoters of the enterprise, in 
order to obtain the capital required, have sold, mort- 
gaged and hypothecated property and securities, and it 
may take the net earnings of many years to reimburse 
them. But they look to the future, believing that event- 
ually their investment will be profitable. It is the per- 
manency of the business, the right to continue it, the be- 
lief that ultimately it will prove remunerative, that com- 
mends and justifies the venture. And the business, being- 
lawful and having always been lawful, why should they 
not count on the right to continue it! Why, in addition 
to the ordinary hazards of all business ventures, should 
they be required to incur the hazard of confiscation by the 
government? It is neither law nor justice, and an act 
which purports to prohibit — not to regulate, but prohibit 
--a business which was lawful when established, is to 
all intents and purposes ex post facto and void. 

AS TO IMPAIRING THE OBLIGATION OF CONTBACTS. 

"No State shall pass any law impairing the ob 

ligation of contracts." 

The contracts here referred to are not contracts of 
any special kind or importance, as, for instance, con- 
tracts between States, or between a State and an individ- 

24 



ual or individuals. The provision applies to all lawful 
contracts. It is immaterial who the contracting parties 
may be, or what may be the subject matter of the con- 
tract, provided only that the contract was lawful when 
made. Contracts made by a brewing company with the 
owners of buildings, for the rent of warehouses, stables 
and salesrooms, or with farmers for barley, oats, hay and 
other supplies, or with the proprietors of newspapers and 
magazines for advertising, or with banks and other finan- 
cial institutions for money borrowed or loaned, or with 
manufacturers of casks, barrels, boxes, bottles and other 
materials, or with any of the numerous corporations, com- 
panies and individuals with whom they have business 
dealings, are entitled to the benefit of this constitutional 
provision the same as the Governor of a State in respect 
to his salary. And these contracts are entered into solely 
on account of the ability, or presumed ability, of the brew- 
ing company to suppty beer. But how can it supply beer 
and fulfill its various contractual obligations if the State 
prohibits the manufacture, and sale of beer? The pro- 
hibition not only impairs, it virtually abrogates these 
contracts. That being the case, the prohibition is for- 
bidden by the Constitution and therefore void, and no 
court is empowered to declare it valid, notwithstanding 
the political, religious, moral or social exigencies of the 
case may seem to demand it. To hold otherwise and per- 
mit a State to violate a positive constitutional injunc- 
tion is to nullify the Constitution protanto. Are contracts 
made by and with persons engaged in the liquor traffic 
excepted from the protection of the constitutional pro- 
vision? It is not so stated in the Constitution. But, per- 
haps, this is another case of suppressed proviso, and we 
should construe the section as if it read as follows : 

"No State shall pass a law impairing the obligation 
of contracts, provided always, however, that a State may 
impair or abrogate contracts based on or relating to 
traffic in any commodity , the manufacture, importation 



or sale of which the State may hereafter determine to 
prohibit." As thus amended the Constitution would, 
of course, authorize a State to prohibit the liquor traffic 
and impair contracts in reference to it, but the question 
is, may a court so amend it by construction and interpre- 
tation? That is the crucial question. But is it true that 
a court does, in fact, ever venture to alter or amend the 
Constitution by construction ? Let us see. 

THE BAETEMEYER CASE. 

In the case of Bartenieyer vs. Iowa (18 Wallace, 129), 
the Supreme Court of the United States, Justice Miller 
delivering the opinion, affirmed the judgment of the Su- 
preme Court of Iowa, maintaining the constitutionality 
of an act prohibiting the sale of liquor and sustaining a 
conviction thereunder. The judgment was affirmed, how- 
ever, on technical grounds, the court holding that the alle- 
gation of ownership of the liquor, in the defendant's 
p]ea (which "was all the evidence given") was insuffi- 
cient. 

In the course of the opinion the court goes on to say : 
"But if it were true, and it was fairly presented to us, 
that the defendant was the owner of the glass of intoxi- 
cating liquor which he sold to Hickey, at the time that the 
State of Iowa first imposed an absolute prohibition on the 
sale of such liquors, then we concede that two very grave 
questions would arise, namely: First, whether this would 
be a statute depriving him of his property without due 
process of law; and, secondly, whether, if it were so, it 
would be so far a violation of the fourteenth amendment 
in that regard as would call for judicial action 
by this court." Here the court intimates that an 
act prohibiting the sale of intoxicating liquors 
might be inoperative as to sales made by per- 
sons who were bona fide owners of the liquor 
at the time the act was passed. In any event the court 
"conceded" that, as to such persons, "two very grave 

26 



questions would arise," questions which are referred to 
elsewhere in the opinion as "of an importance to require 
the most careful and serious consideration." But in point 
of fact are there two questions] Does not the first question 
cover the case? If the court finds that a statute deprives 
persons of property without due process of law, is not 
the court then bound by the supreme law of the land to 
declare it unconstitutional"? Does the nature or value of 
the property, or the occupation of the person, or the de- 
sirability of the statute in question matter at all? Does 
anything matter except the requirements of the Consti- 
tution? Suppose the property be merely a glass of 
whisky, or the person a saloon-keeper, what then? May 
the court discriminate in respect to persons or property ? 
Has it any discretionary power in the premises whatever? 
If not, what does the second question really mean? Is 
not the simple fact that a statute deprives persons of 
property without due process of law sufficient in itself to 
call for specific action— not judicial action in accordance 
with the opinion the court may entertain respecting the 
purpose or policy of the statute, but judicial action in ac- 
cordance with the requirements of the Constitution ? 

It is apparently assumed by the court that something 
more than a violation of the constitutional requirement 
is necessary to authorize, or at least to oblige, the court 
io declare the statute unconstitutional. It is not chough., 
in the opinion of the court, that a statute merely deprives 
•a person of property without due process of law, though 
by the express terms of the Constitution that is all- 
sufficient. It must, in addition, it would seem, "be so far 
a violation of the fourteenth amendment in that regard 
as iuquM call for judicial action by tins court." Pre- 
cisely what this means I cannot conceive; whether that it 
is necessary that the statute should also be obnoxious in 
other respects, or that extrinsic facts and circumstances 
•may justify a departure from the plainly expressed mean- 
ing of the Constitution. But whatever it mav mean, it 



clearly implies that, in the opinion of the court, 
the statute would not "be so far a violation of the 
fourteenth amendment" as to be declared unconstitu- 
tional, solely for the reason that it deprives persons of 
property without due process of law. But the Constitu- 
tion assigns that circumstance as a sole and sufficient rea- 
son for prohibiting such laws ; and independent of such 
prohibition a statute which is so far a violation of com- 
mon justice as to deprive persons of rights and property 
without a lawful trial ought to be declared void as con- 
travening the expressed purpose and fundamental princi- 
ples of the Constitution. 

But, as we see, the court is of the opinion that some- 
thing more than a violation of the one requirement of 
the Constitution — to observe due process of law in de- 
priving persons of rights and property — is necessary to 
constitute a peremptory call for judicial intervention. 
What this something may be does not appear; but it is 
evidently something not contemplated by the makers of 
the Constitution, since it is neither expressly mentioned 
nor necessarily implied. It is, however, probably nothing 
more than the customary proviso which the courts, by 
virtue of their power to construe and interpret the Con- 
stitution, assume authority to append to all constitu- 
tional restrictions on the legislative powers of the 
States, thereby excepting from such restrictions all 
statutes which may be deemed in the nature of police 
regulations. 

By this process of construction and by interpreting 
"necessary police regulation" to embrace all legislation 
which affects, directly or indirectly, the rights, property 
or health of the people, constitutional limitations and re- 
strictions are done away with, and the special purpose of 
the people in placing checks upon the ill-considered or 
arbitrary exercise of legislative power is defeated. And 
so legislative grants of monopolies are upheld, as in the 
Slaughter House cases; and laws abridging the rights, 

28 



privileges and immunities of citizens of the United States, 
laws depriving persons of liberty and property without 
trial, and laws impairing the obligation of contracts, all 
positively prohibited by the Constitution, are sustained 
by reason of the paramount authority of the police power. 
Mighty, indeed, is the police power, as evolved and con- 
tinuously amplified by judicial construction ! 

In the case under consideration the court says, in 
reference to the alleged abridgment by the statute of the 
privileges and immunities of citizens: "If, however, 
such a proposition is seriously urged, we think that the 
right to sell intoxicating liquors, so far as a right exists, 
is not one of the rights growing out of citizenship of the 
United States, and in this regard falls within the prin- 
ciples laid down in the Slaughter House cases." That's 
all. No intimation of the mental process by which the 
court arrives at the conclusion that the right to sell liquor 
is not a right incident to citizenship and which the States 
are forbidden to abridge; no legal reason, or reason of 
any kind, for distinguishing this right in that respect 
from the right to sell other commodities; no fact or cir- 
stance stated to show why this right is not, or should not 
be, safeguarded by the Constitution and the laws the 
same as other retained rights; nothing of the kind. 
Merely the arbitrary assumption of the court that such 
is the case. Stat pro ratione voluntas. And yet it is a 
right which has been enjoyed by the American people and 
their European ancestors from time immemorial, since 
the memory of man runneth not to the contrary, and it, 
is only reasonable to infer that, if they had intended that 
the States should have the power to prohibit its enjoy- 
ment, or to abridge in any way their ancient customs in 
respect to it, they would have expressly granted and de- 
fined that power in the Constitution. In the absence of 
any express grant, or of any grant from which it may be 
reasonably implied, the logical as well as the legal pre- 
sumption is that they did not intend that the States should 
possess the power. From our knowledge of the social 



customs which prevailed when the Constitution was es- 
tablished we may safely assume that it would not have 
been adopted by the Convention nor ratified by the people 
if it had contained a clause vesting power in either the 
State or the Federal Government to deprive the people of 
"their lawful liberty" to use and traffic in alcoholic 
liquor. From Washington down to the most obscure citi- 
zen the people were in the habit of drinking wine or other 
alcoholic liquor at their pleasure, and they would have 
vigorously resented any attempted governmental inter- 
ference with their time-honored custom in that respect as 
a tyrannical invasion of their natural and inalienable 
rights. No man, and especially no lawyer, of that day, 
would have ventured to contend that government pos- 
sessed, or ought to possess, the power to deny or abridge 
the ordinary rights, privileges and immunities which the 
people had freely enjoyed under the common law and 
which were regarded as the usual and necessary attrib- 
utes of liberty. The people, indeed, had just waged a 
long and successful war "to establish justice and to se- 
cure to themselves and their posterity the blessings of 
liberty," and it is not to be supposed that they would 
have tolerated a proposition to vest in any branch of 
the government they were then founding absolute power, 
or power to deprive citizens of life, liberty and property 
in any way except by due "process of law and a verdict 
of their peers in accordance with ancient customs. They 
did not believe that government ought to possess such 
potter, and they did not intend to grant it. 

But if any doubt could have existed on this point pri >r 
to the adoption of the Fourteenth Amendment, that 
amendment removes it and makes it perfectly, clear that 
no such power is lodged anywhere, even among the re- 
served powers of the States, as those who contend for the 
constitutionality of prohibitory liquor laws are obliged to 
1 ;! nine. 

That amendment, reaffirming the principle;? laid ^ ! 



mm rMWRMBI 



in the original Constitution and in earlier amendments 
and, perhaps, already sufficiently discussed, declares 

that, " no State shall make or enforce any law 

which shall abridge the privileges or immunities of citi- 
zens of the United States; nor shall any State deprive 
persons of life, liberty or property, without due process 
of law, nor deny to any person within its jurisdiction 
the equal protection of the laws." To the ordinary 
American citizen, who is neither infected by the mania 
for enforced total abstinence nor inspired by a passion 
for unexpected and hair-splitting decisions, this is suffi- 
ciently explicit. But, nevertheless, a court may hold that 
the drinking, or buying, or selling of alcoholic liquors 
is not one of the "privileges or immunities of citizens of 
the United States ;" or that wine, or beer, or whisky, or a 
brewery, or a distillery, or what you will, is not property; 
or that "due process of law" does not mean due process 
of law, but something entirely different; or that a liquor 
dealer or any person who uses liquor, or is directly or in- 
directly interested in its manufacture or sale, is not a 
person entitled to "the equal protection of the laws," 
and if the court happens to be the court of last resort, 
Avhat are we going to do about it? That is the question. 
AY hat does good citizenship require of us! To accept the 
law as given by the court and obey it? That, of course — 
so long as it continues to be the law. But are we to ab- 
stain from criticism and agitation and abandon effort 
and hope that it shall not continue to be the law? Does 
good citizenship demand that a man shall hold his peace 
when his reason, his conscience, his sense of right and 
justice and his love of country urge him to protest? Does 
a proper respect for the august tribunal, whose high pre- 
rogative it is to construe the Constitution and the laws, 
require the total abnegation of individual reason and 
conviction? Are all its decisions inevitably right, and 
dissenting opinions necessarily wrong? 

31 



THE SLAUGHTER HOUSE CASES. 

In the case cited the court refers us, for instance, to 
"the principles laid down in the Slaughter House cases" 
(16 Wallace, 36), as sufficient reason for excluding from 
"the equal protection of the laws" the right to sell liquor 
— ' ' so fas as such a right exists. ' ' 

Well, those principles are such that Chief Justice 
Chase, Justice Field, Justice Swayne and Justice Brad- 
ley, all emphaticaly disavowed them and delivered, or 
concurred in, radically dissenting opinions. The opinion 
of the court was. .delivered by Justice Miller, with whom 
concurred, Justices Clifford, Davis, Strong and Hunt, a 
bare [majority of one. It is, perhaps, the most remark- 
able opinio© ever delivered iby the court, i ■ '*•>'. 
' \v The. facts of the case, or rather, cases, for there were 
several, are thus stated : 1 The Legislature of Louisiana 
passed an act March 8., '1869',- granting to a corporation; 
created ; by ify-thie' 'exclusive right f 04' twenty-five years to 
have rand maintain' slaughter hou*se3, landings for", cattle 
ahdymrds !foV> enclosing cattle, in the'parishes of Orleans,. 
Jefferson arid'St^Benaatd^iirtlrat State, a'territdry 1 - safd 
to contain 4 /ISfl fsqujiiare miles, including the" city of New 
Orleans, and>a population pf b^tw^en -200,000 and 1 300,000 
people.. The^ct prohibited all' other persons : fro!M builds 
ing, keepingt or having slaughter 'ho uses, landings for cat- 
tle and yfei'ds for cattle' intended for sale or slaughter 
within those limits, and required -that all cattle' and other- 
animals' intended for sad e 6r slaughter in: that i district 
should be brougfet to : the- yarids and slaughter hduses> of 
th»e 'oor^oration, and authorized the''corpora!tion to 'exact 
certain. prescribed fees ;f or the use of its wharves and for 
each -animal .landed, and certain prescribed fees for each 
animal slaughtered, besides the head, feet, gore and en- 
trails, except of swine!' 

' " One may- readily' imagine that 1 the granting' of 1 this 
monopoly aroused- intense excitement and indignation 



among the cattle dealers, farmers, butchers and the peo- 
ple generally, and that to them it must have appeared as 
an unlawful and outrageous abuse of legislative power. 
Imagine, then, their consternation and, for that matter, 
the consternation of constitutional lawyers as well, when 
the Supreme Court sustained the grant and declared it 
to be a lawful exercise of the police power. Think of it. 
That granting the exclusive privilege to carry on an ordi- 
nary, business for profit is merely prescribing a reason-, 
able and lawful police regulation ! Not lawful, it is true, 
according to the . Constitution, for by granting to a 
lavored individual or corporation the. exclusive privilege 
to carry on a particular business the constitutional privil- 
eges .and immunities of other citizens who are engaged in, 
or may desire to engage in$ .that business are thereby 
necessarily abridged ;,;but lawful because, in the opinion 
of the court, the reSjer^ed powers - of the State arepara- 
mpunt andjjin^re^pefititp those .powers, a, State,, like the 
English, Parliament,, is supreme,- and therefore not sub- 
ject to constitutional checks and limitations. 

The; argument- of theocourt; it is perhaps superfluous 
to state; is not -expressed in these, identical words, but 
they reflect its true purport and effect. ■ It is impractica- 
ble, with the space,. at my disposal, to present the argu- 
ment in full, as in perfect fairness I should like to do. 
Briefly, however, the whole argument in favor of prohib- 
itory liquor laws may be adequately stated in syllogistic 
form, as follows: 

(1) A State has power to prescribe necessary police 
regulations. 

(2) The prohibition of the liquor traffic is a necessary 
police regulation. 

(3) A State has power to prohibit the liquor traffic. 
Upon analysis it will be found that the argument in 

support of the validity of these laws is completely ex- 
pressed in the syllogism. And if the premises are true, 
the conclusion logically follows. But the premises are not 

33 



true. The major premise is defective because it does not 
correctly affirm the power of a State. A State has power 
only to prescribe such police regulations as do not conflict 
with the provisions of the Constitution. 

The minor premise begs the question and assumes, as 
true, that which the experience of the civilized world 
absolutely refutes, and reason declares is not true. 

The premises, then, being false, it necessarily follows 
that the conclusion deduced from them is also false. 
Nevertheless the conclusion thus deduced is declared by 
the Supreme Court of the United States to be the law of 
the land. And, if "the principles laid down in the 
Slaughter House cases" establish, or tend to establish, 
anything, it is that no provision of the Federal Constitu- 
tion can be construed to deny or disparage the absolute 
supremacy of the police power ; and, further, that all laws 
of a State which affect in any manner the comfort, health 
or safety of the people, or their property, or their rights, 
privileges and immunities are to be construed as legiti- 
mate police regulations. 

By such construction the rights, liberties, privileges 
and immunities of the people are denied or abridged at 
the will of Legislatures and city councils, in defiance of 
constitutional guarantees that they are, and ever shall be, 
inviolate. And so it comes about, to the bewilderment of 
those who regard the Constitution as the supreme law 
and believe that the people are of right entitled to all the 
liberty it accords them, that laws or ordinances arbi- 
trarily deny or abridge their rights and privileges, not 
only in respect to their sports and pastimes, their feasts 
and merry-makings, but even in respect to their custom- 
ary vocations and their right to labor. For, if a State 
may prohibit the people from engaging in the business of 
slaughtering cattle and compel those who are engaged in 
it to quit, it may also deny their right to engage in other 
kinds of business. But even so, in equity and justice, and 

34 



in accordance with the letter and spirit of the Constitu- 
tion as well, the prohibition should be general and apply 
to all persons alike, since it is the character of the busi- 
ness and not the persons engaged in it that is supposed 
to authorize and justify the State in declaring it unlaw- 
ful. What kind of justice or law is that which permits a 
privileged few to carry on a business, but denies the right 
to all others, even though they are able and willing to 
comply with the legally prescribed conditions and regula- 
tions? Is the business more detrimental to the morals, 
health or safety of the community when conducted by 
Tweedledum than it is when conducted by Tweedledee, if 
both conduct it in precisely the same manner and subject 
to the same regulations? And, if the business is lawful 
and permitted at all, is not the prescribing of regulations 
applicable to both, and to all other persons who may en- 
gage in it, the legitimate limit of the State's power to 
regulate and control? If, under pretence of prescribing 
police regulations, a State goes further than this and re- 
stricts exclusively to certain individuals rights and privil- 
eges which theretofore, by law and custom, had been 
freely enjoyed by all the people, its action is not only 
impolitic and unjust, but it is, or perhaps I should say, 
since the court holds otherwise, it seems to be, a flagrant 
violation of the constitutional provision that no State 
shall "abridge the privileges or immunities of citizens of 
the United States."' The court, however, holds that it is 
not because the inhibition does not refer to the abridg- 
ment by a State of the privileges and immunities of citi- 
zens of that State, but only to the abridgment of the priv- 
ileges and immunities of citizens of the United States. 

CITIZENS OF THE SEVERAL STATES, AND CITIZENS OF THE 
UNITED STATES. 

In other words, the court holds that citizens of a par- 
ticular State are not necessarily and for all purposes citi- 

35 



1 



zens of the United States and entitled to all the protec- 
tion which the Constitution guarantees to "Citizens of 
the United States." 

This may appear startling, possibly incredible, to the 
lay reader, and lest I be charged with misstating or evad- 
ing the argument of the court, I give the exact words as 
reported : 

"The first section of the fourteenth article, to which 
our attention is more specifically invited, opens with a 
definition of citizenship — not only citizenship of the 
United States, but citizenship of the States. 

* ' No such definition was previously found in the Con- 
stitution, nor held any attempt been made to define it by 
Congress. 

"It has been the occasion of much discussion in the 
courts, by the executive department, and in the public- 
journals. It has been said by eminent iudares that no 
man was a citizen of the United States, except as he was 
a citizen of one of the States composing the Union. 
Those, therefore, who had been born and resided always 
in the District of Columbia, and in the Territories, 
though within the United States, were not citizens. 
Whether this proposition was sound or not had never 
been judicially decided. But it had been held by this 
court, in the celebrated Dred Scott case, only a few 
years before the outbreak of the Civil War, that a man 

African descent, whether a slave or not, was not and 
could not be a citizen of a State, or of the United States. 
This decision, while it met the condemnation of some of 
the ablest statesmen and constitutional lawyers of the 
country, had never been overruled; and if it was to be 
accepted as a constitutional limitation of the right of 
citizenship, then all of the negro race who had been re- 
cently made free men, were still not only not citizens, but 
were incapable of becoming so by anything short of an 
amendment to the Constitution. To remove this diffi- 
culty primarily and to establish a clear and comprehen- 

36 



TT 



sive definition of citizenship which should declare what 
should constitute citizenship of the United States, and 
also citizenship of a State, the first clause of the section 
was framed: 'All persons born or naturalized in the 
United States and subject to the jurisdiction thereof, are 
citizens of the United States and of the State wherein 
they reside.' 

"The first observation we have to make on this clause 
is, that it puts to rest both the questions which we stated 
to have been the subject of differences of opinion. It de- 
clares that persons may be citizens of the United States 
without regard to their citizenship of a particular State, 
and it overturns the Dred Scott decision by making all- 
persons born within the United States and subject to its 
jurisdiction, citizens of the United States. That its main 
purpose was to establish the citizenship of the negro can 
admit of no doubt. The phrase, 'subject to its jurisdic- 
tion' (sic) was intended to exclude from its operation 
children of ministers, consuls and citizens or subjects of 
foreign States, born within the United States. 

"The next observation is more important in view of 
the arguments of counsel in the present case. It is that 
the distinction between citizenship of the United States 
and citizenship of a State is clearly recognized and es- 
tablished. Not only may a man be a citizen of the United 
States without being a citizen of a State, but an important 
element is necessary to convert the former into the latter. 
He must reside within the State to make him a citizen of 
it, but it is only necessary that he should be born or 
naturalized in the United States to be a citizen of the 
Union. 

-'It is quite clear, then, that there is a citizenship of 
the United States, and a citizenship of a State, which are 
distinct from each other, and which depend on different 
characteristics or circumstances in the individual. 

"We think this distinction and its explicit recognition 
IB this amendment of great weight in this argument, be- 

37 



cause the next paragraph of this same section, which is 
the one mainly relied on by the plaintiffs in error, speaks 
only of privileges and immunities of citizens of the United 
States, and does not speak of those of citizens of the sev- 
eral States. The argument, however, in favor of the 
plaintiffs rests wholly on the assumption that the citizen- 
ship is the same, and the privileges and immunities guar- 
anteed by the clause are the same. 

"The language is, 'no State shall make or enforce any 
laws which shall abridge the privileges and immunities 
of citizens of the United States. ' It is a little remarkable, 
if this clause was intended as a protection to the citizens 
of a State against the legislative power of his own State, 
that the word (words!) citizen of the State should be left 
out when it is so carefully used, and used in contradis- 
tinction to citizens of the United States, in the very sen- 
tence which precedes it. It is too clear for argument 
that the change in phraseology was adopted understand- 
ing^ and with a purpose. 

"Of the privileges and immunities of the citizen of 
the United States, and of the privileges and immunities 
of the citizen of the State, and what they respectively are, 
we will presently consider; but we wish to state here that 
it is only the former which are placed, by this clause, 
under the protection of the Federal Constitution, and 
that the latter, whatever they may be, are not intended to 
have any additional protection by this paragraph of the 
amendment. 

"If, then, there is a difference between the privileges 
and immunities belonging to a citizen of the United States 
as such, and those belonging to a citizen of the State as 
such, the latter must rest for their security and protec- 
tion where they have heretofore rested ; for they are not 
embraced by the paragraph of the amendment. ' ' 

I give the argument in extenso for the reason stated, 
and because the volume in which it is reported may not 
be accessible to the general reader, who may be curious 

38 



to know on what grounds the Supreme Court of the 
United States holds that citizens of the several States are 
not also and necessarily citizens of the United States, un- 
der all circumstances and at all times. If the court is 
right, then inhibition is absolutely meaningless, for if it 
was not "intended as a protection to the citizen of a State 
against the legislative power of his own State," for whose 
protection was it intended? For the exclusive protection 
of citizens of the Territories and other States? Their 
privileges and immunities are sufficiently protected in the 
several States by Clause 1, Section 2, Article IV., of the 
Constitution: "The citizens of each State shall be en- 
titled to all the privileges and immunities of citizens in 
the several States. ' ' No reason is assigned, and none can 
be imagined, for giving them additional protection, nor 
for excluding from the protection guaranteed to all citi- 
zens of the United States, the very citizens who would be 
specially injured, by the inhibited act. 

The conclusions drawn by the court from the wording 
of the amendment in question and from the circumstances 
which led to its adoption, not only do not logically fol- 
low, but, if one may say so without disrespect, they ap- 
pear to be irrelevant and inconsequential. 

' ' All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of the 
United States, and of the State wherein they reside." 
The primary object of this declaration was, as all agree, 
to define the status of the negro and prevent any State 
from denying him citizenship. Not only was this the 
primary object, but, I think, we are fully justified in as- 
suming it was the only object, because, except for that 
purpose, it was unnecessary. 

To infer from the words used that a State may abridge 
the privileges and immunities of its own citizens, but 
may not abridge the privileges and immunities of citi- 
zens of the United States, evinces a peculiar power or 
process of deductive reasoning, or imputes to familiar 



words an esoteric significance strangely at variance with 
their established meaning. Such an inference involves 
ns in a maze of mystification and difficulties. What priv- 
ileges and immunities and what citizens are referred to ? 
What privileges and immunities appertain to citizens of 
the United States that do not also appertain to citizens 
of a State? No argument is necessary to prove "that 
there is a citizenship of the United States and a citizen- 
ship of a State." Every American knows that evident 
fact, and he knows that all citizens of the United States 
are not necessarily citizens of a State. Moreover, he also 
knows, unless this decision has caused him to doubt, that 
all citizens of a State are citizens of the United States, 
and entitled to the privileges and immunities of citizens 
of the United States. The conclusion to be drawn from 
the language of the amendment, and the only conclusion 
consistent with the accepted meaning of the words and 
the usual rule of construction, is that the expression 
' ' citizens of the United States ' ' means all citizens of the 
United States, including, of course, those of the State 
which may have passed an inhibited act; and that the 
phrase "privileges or immunities of citizens of the 
United States" embraces all the privileges and immuni- 
ties of such citizens and not merely those, whatever they 
may be, which appertain to citizenship of the United 
States in contradistinction to citizenship of the States. 
And the reason that the amendment "speaks only of 
privileges and immunities of citizens of the United States, 
and does not speak of those of citizens of the several 
States," is, apparently, because it was intended to apply 
to the privileges and immunities common to all citizens 
of the United States and not to the special privileges of 
citizens of a States, such, for instance, as holding office 
and voting at local elections. 

If this is the case, and the amendment was intended 
to, and does, in fact, forbid the abridgment of the cus- 
tomary privileges and immunities of American citizens, 

40 



_* J» 



I i 



as the language plainly indicates, the argument of the 
court is unsound, the decision wrong and the principles 
laid down inconsistent with the fundamental law of the 
land. The legislative act which the court declared to be 
in harmony with those principles, and therefore upheld, 
is thus characterized by Justice Swayne in his dissent- 
ing opinion: "A more flagrant and indefensible invasion 
of the rights of many for the benefit of a few has not oc- 
curred in the legislative history of the country." 

And the true principles of law are recognized and fol- 
lowed by Justice Field in his dissenting opinion: "The 
State may prescribe such regulations for every pursuit 
and calling of life as will promote the public health, se- 
cure the good order and advance the general prosperity 
of society, but when once prescribed, the pursuit or call- 
ing must be free to be followed by every citizen who is 
within the conditions designated, and will conform to the 
regulations. This is the fundamental idea on which our 
institutions rest, and unless adhered to in the legislation 
of the country our government will be a Republic only 
in name. 

' ' The Fourteenth Amendment, in my judgment, makes 
it essential to the validity of the legislation of every State 
that this equality of right should be respected. 

"How widely this equality of right has been departed 
from, how entirely rejected and trampled upon by the act 
of Louisiana I have already shown. 

' ' And it is to me a matter of profound regret that its 
validity is recognized by a majority of the court, for by it 
the right of free labor, one of the most sacred and im- 
prescriptible rights of man, is violated. 

"As stated by the Supreme Court of Connecticut, in 
the case cited, grants of exclusive privileges such as is 
made by the act in question, are opposed to the whole 
theory of free government, and it requires no aid from 
any bill of rights to render them void. 

"That only is a free government, in the American 

41 



sense of the term, under which the inalienable right of 
every citizen to pursue his happiness is unrestrained, 
except by just, equal and impartial laws." 

Verily these are the words of wisdom, and they em- 
body the law of the case. Unhappily the majority of the 
court could not, or did not, so regard them, and the result 
is that the several States are permitted to abridge the 
privileges and immunities of their respective citizens at 
will, the Constitution of the United States to the con- 
trary notwithstanding. But the words of the great judge 
who stood for liberty and the Constitution are true never- 
theless, and because they are true, in the end they will 
prevail. 

In the meantime the ''lawful liberty" of the people to 
traffic in alcoholic liquors will continue to be "trampled 
upon" by Legislatures and city councils, and denied by 
the courts in conformity with the principles laid down in 
this case. 

In reference to the application of those principles to 
prohibitory liquor laws the same distinguished jurist 
thus expresses himself — I quote from his opinion in the 
Bartemeyer case : "I accept the statement made, in the 
opinion of the court, that the act of Iowa of 1860, to 
which the plea of the defendant refers, was only a re- 
vision of the act of 1851, and agree that, for this reason, 
the averment of the ownership of the liquor sold prior to 
the passage of the act of 1860, did not answer the charge 
for which the defendant was prosecuted. I have no doubt 
of the power of the State to regulate the sale of intoxi- 
cating liquors when such, regulation does not amount to 
the destruction of the right of property in them. The 
right of property in an article involves the power to sell 
and dispose of such article as ivell as to use and enjoy it. 
Any act which declares that the owner shall neither sell 
it nor dispose of it, nor use and enjoy it, confiscate it, 
depriving him of his property ivithout due process 
of law. Against such arbitrary legislation the Four- 

42 



W 



teenth Amendment affords protection. The prohibition 
of sale in any way, or for any use, is quite a differ- 
ent thing from a regulation of the sale or use so as to 
protect the health and morals of the community. All 
property, even the most harmless in its nature, is equally 
subject to the power of the State in this respect with the 
most noxious." 

I have italicized these luminous words, pregnant with 
reason and truth, because, in my judgment, they, rather 
than the opinion of the court, lay down the true principle 
of law, and the principle which the Constitution formally 
declares shall control all legislation affecting the rights 
or property of the people. 

But is it not strange that any intelligent American 
should doubt the intent or the power of the Constitution 
to protect the property of American citizens from con- 
fiiscation, or their rights and privileges from arbitrary 
invasion? 

If the American Constitution is powerless to protect 
the people from such unjust and despotic abuse of gov- 
ernmental authority, it is not a very wonderful or effect- 
ive "Palladium of liberty" after all. We might as well 
dispense with it altogether and vest absolute power in 
State Legislatures. 

But the intent of the Constitution to safeguard the 
property of citizens from unlawful seizure and their 
privileges and immunities from violation, such privileges 
and immunities at least as citizens of all free govern- 
ments are of right entitled to, is obvious. The power to 
safeguard them, when the governmental agencies charged 
with that responsibility disregard the expressed intent, 
may not be so obvious. It is the power of public opinion, 
always formidable, even when based on error or preju- 
dice, and absolutely irresistible when consciously right 
and just. It is not, I repeat, by virtue of any special 
grant, or the tacit indulgence of government, that 
American citizens are entitled to enjoy in peace and com- 

43 



fort their glass of wine, or ale, or beer, or whisky, or 
whatever their need or appetite may require; it is by 
virtue of their inherent and inalienable right as free men 
that distinctive right of liberty which permits free and 
responsible men to regulate their conduct according to 
their own will, so long as they do not thereby trespass 
upon the equal rights of others, and as such right it is 
protected and guaranteed to free American citizens by 
the Constitution. 

Let the people once know this, not suspect it or 
merely believe it, but knoiv it, and they will soon cease to 
be vexed and oppressed by these absurd and unjust laws. 
For, after all is said, it is now rather the power of prece- 
dent than the requirements of the Constitution that con- 
strains our courts to uphold prohibitory liquor laws. The 
court of last resort has decided that the States have con- 
stitutional power to enact them, and though it may be 
shown that the reasoning of the court is unsound, and the 
decision wrong, still a decision is a decision, and must be 
followed. The ethics of our jurisprudence, it seems, de- 
mand it; the strict observance of established precedent, 
being deemed of greater importance in the administra- 
tion of justice, than the rectification of a wrong, or the 
enforcement of a right. In other words, our courts seem 
to think that it is better to be consistent, and uniformly 
wrong, than to be inconsistent, and sometimes right. 

Well, consistency as an abstract quality is all right, 
perhaps, but as predictated of judicial decisions it is 
good or bad as the decisions are right or wrong. And 
respect for established precedents, and for juridical rules 
and conventions is also well enough, but their authority 
is subject always to the higher authority of the Consti- 
tution and cannot be invoked to deprive the people of 
rights and privileges which the Constitution declares 
shall not be disparaged or denied. 

Prohibitory liquor laws, as I think has Been clearly 
shown, are of the nature of ex post facto laws; they im- 

44' 



! ! 



pair the obligation of contracts ; they abridge the privil- 
eges and immunities of citizens, and they deprive persons 
of rights and property without due process of law. 

And being such laws, that is to say, of a kind which 
the Constitution declares "no State shall pass," it was 
error, in the first instance, to decide that a State has 
power to pass and enforce them. The error is not recti- 
fied, nor the evil resulting from it mitigated, by repeti- 
tion. To adhere to the error and perpetuate the result- 
ant evil, for any conceivable reason, is merely to magnify 
the wrong. 

To do so for the alleged reason that a decision once 
rendered, though erroneous, settles the question involved 
and definitely establishes the law is to ascribe to prece- 
dent a grossly exaggerated power and importance. 

No question is ever finally settled until it is settled 
right, and no law which contravenes express provisions 
of the Constitution and the fundamental principles of 
justice can ultimately prevail as the established law of 
this country. 

If our courts, by reason of their subjection to prece- 
dent, cannot, or will not, overrule a decision which con- 
flicts with the Constitution and validates legislative acts 
which are forbidden by the Constitution, the people are 
indeed wronged, but they are not wholly without remedy, 
for they elect the legislators. Let them elect as their 
representatives in the Legislatures men of sufficient in- 
formation to know the plain requirements of the Con- 
stitution and of sufficient honesty to observe them, and 
such laws will no longer travesty justice and shame our 
pretensions to free and enlightened government. 



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